redefining the child’s right to identity הגדרה מחדש את זכותו של הילד...

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OUP IJLPF: INTERNATIONAL JOURNAL OF LAW, POLICY AND THE FAMILYManu. No. Ronen007

International Journal of Law, Policy and the Family 18, (2004), 147–177

International Journal of Law, Policy and the Family, Vol. 18, No. 2,� Oxford University Press, 2004; all rights reserved

* School of Social Work and Faculty of Law, Bar Ilan University, Israel. An earlier version of thisarticle was initially presented as part of the Research Seminar Series of the Family Studies ResearchCentre at Cardiff University on 27 February 2002. The research for it began while the author was aResearch Fellow at Queen Mary College, University of London. I am very grateful to ProfessorGillian Douglas, Mr John Eekelaar, Professor Michael Freeman, Professor Nigel Lowe, ProfessorMervyn Murch, Dr Rhona Shuz, and an anonymous reviewer for their helpful comments to earlierversions of this article. I also thank Professor Smadar Lavie for referring me to Bruch (2001).

REDEFINING THE CHILD’S RIGHT TOIDENTITY

YA’IR RONEN*

ABSTRACT

This article proposes redefining the child’s right to identity as a right to stateprotection of ties meaningful to the child. Its main arguments are, in essence:(1) Such a right should protect the development of an authentic individual byseeking the child’s wishes and feelings concerning their ties. (2) Protection ofan individualized identity necessitates exploration of culture as a context ofpersonal meaning which cannot be equated with cultural sensitivity ascommonly perceived. (3) Consequently, preferential protection of the child’sties to a minority culture or to individuals affiliated to it is seen as violating theproposed right. (4) The UN Convention on the Rights of the Child reaffirmscommitment to a dynamic child-constructed identity. (5) Protection of theproposed right reflects, protects and creates a social reality in which children’slives may be imbued with personal meaning. A discussion of two English casesdemonstrates these arguments.

1. INTRODUCTION

This article maintains that the state should have a positive duty tosafeguard the child’s right to identity as a right to protection of tiesmeaningful to the child .1 It suggests that these ties delineate the child’sidentity. These are primarily ties to the human world, but they can alsobe ties to an animal, such as a dog or a horse, to an inanimate object,such as a book or a tree, or to a geographic place such as a village or aphysical home.

It begins with an exposition of the main arguments and focus. Thisintroduction is followed by a discussion of authenticity, of the child’slegally neglected need for a meaningful existence and of culture as acontext of personal meaning. This discussion forms the rationale for the



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proposed definition of the right to identity. A critical discussion of theright to identity in international law follows, clarifying and exemplifyingthe need to redefine the right in positive law. There then follows theessence of the stories of two children as told by the Lord Justices of theEnglish Court of Appeal in two cases which exemplify some of thedilemmas related to identity that are discussed in the article. An analysisof the two court cases presented follows and ends with a concludingnote exploring the key implications of the proposed redefinition of theright.

The main arguments of this article are:1. The child’s right to identity derivative of their human dignity

should protect the development of an authentic self-actualizing individ-ual which maintains psychological ties, primarily ties of interdepen-dence to significant others. The state should protect a right to anindividualized identity by seeking the child’s wishes and feelingsconcerning their ties. In this way, a structured element of caution isintroduced into child law policy and practice.

2. Protection of an individualized identity necessitates exploration ofculture as a context of personal meaning and is founded on empathicunderstanding of an individual child’s experience. Such respect cannotbe equated with what is commonly perceived as cultural sensitivity.

3. Consequently, preferential protection of the child’s ties to aminority culture or to individuals affiliated to that culture is seen asviolating the right to identity. Such preferential protection signifying apoliticized selectivity of compassion is an inappropriate tool to corrector counteract prejudices against such a minority culture.

4. Neither the UN Convention on the Rights of the Child (UNCRC)nor the European Convention for the Protection of Human Rights andFundamental Freedoms (ECPHRFF) explicitly uphold the right toidentity as defined here. The child’s right to guidance formulated inArticle 5 of the UNCRC and their right to free expression and right toparticipation formulated respectively in Articles 12 and 13 to theUNCRC, as interrelated, implicitly reaffirm the commitment of inter-national law to a dynamic child-constructed identity.

5. Legal protection of the proposed right not only reflects andprotects a social reality in which children’s lives may be imbued withpersonal meaning. It also creates such a reality through law’s trans-formative educational impact.

The focus of this discussion is not any national law but ratherinternational instruments, primarily the UNCRC. Though not incor-porated into statute law in most jurisdictions (including England), theUNCRC is the most authoritative legal text on children in internationallaw (Van Bueren, 1995:1–25). English Courts, like many other domesticcourts worldwide, have recognized that domestic administrative andlegal procedures absorb the UNCRC’s expectations (Rosenblatt, 2003)



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and therefore its minimalist and sometimes implicit references toidentity are seen as deserving primary attention. The ECPHRFF, clearlybearing on the two cases discussed here, is also discussed.

Following cultural anthropologist Clifford Geertz (1983: 218), posi-tive law, such as these two Conventions and case law, which should beguided by their imperatives, is seen here not only as reflecting socialnorms but also as constructing them through the articulation andenforcement of legal norms. Thus, law may influence both individualand community identity (Lukinsky, 1987; Post, 1995) through itstransformation of local cultures (An-Na’im, 1994). Therefore, law isseen as a tool for the promotion of social change despite the fact thatcultural values influence its implementation (Alston, 1994: 23) andirrespective of the fact that lawmakers sometimes deny its social impact.

2. THE RATIONALE FOR REDEFINING THE RIGHT TO IDENTITY

A. Facilitating the Development of an Authentic Self-actualizing IndividualIncreasingly, the child is seen as a human being worthy of the protectionof a human rights regime not only by international law but also bysocieties at large (eg Van Bueren, 1995: 6). Children are now oftenportrayed both in legal and in social science discourse as having apotential for self-actualization or self-realization (eg Rogers, 1989;Eekelaar, 1994: 49). Such a potential may be seen as enshrined withinthe concept of human dignity and justifying the attribution of humanrights (eg Taylor, 1994: 41–2; Rockefeller, 1994: 87; Erbele, 2002: 256).

However, current legal protection of the child’s right to humandignity does not guarantee protection of an individualized identity.Taylor (1991: 32–5) explains that the notion of individualized identitydraws support from an ideal of authenticity, in the sense of being true tooneself and to one’s particular way of being. It implies that if you are nottrue to yourself you miss what being human means for yourself.

The understanding of identity proposed here departs from theclassical substantive, essentialist, conception of identity which empha-sizes static, unchanging elements of identity (Taylor, 1991; Taylor, 1994;Lavie and Swedenberg, 1996:11). Identity should not be seen asdeveloping in a vacuum, but rather always through dialogue andsometimes struggles with significant others – those persons who matterto the individual constructing their identity (Taylor, 1994; Eekelaar,1994: 51; Wilson, 1997: 281; Eekelaar, 2004). Even as the individualoutgrows some of these others, the internal dialogue with themcontinues throughout life and a contribution to the formation of anevolving identity in early childhood continues indefinitely (eg Taylor,1994). Taylor (1994) writes of two spheres of recognition of identity.

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First, the intimate sphere of recognizing an identity that is formed indialogue and struggle with significant others, and second, a publicsphere where a politics of recognition may protect the individual’sidentity. In adopting such a conception of identity, it is not difficult toaccept the assertion of Lavie, Swedenberg and their colleagues thatthere is no objective immutable link between identity and a specificplace such as, say, a place of birth (Lavie and Swedenburg, 1996: esp. 1,2). An assumption of such a link is inherent in an abstract, decontexual-ized, understanding of identity rejected here.

Alongside the child’s need ‘to become’, to develop and change, tofulfil dreams and plans, the need, in An-Na’im’s words, ‘to be differentfrom others’ (2002: 1–2) there is another need. This is often neglectedby advocates of children’s rights, though it is well embedded in socialscience literature. This is the child’s need ‘to be’, to be his/herauthentic self and to be recognized as ‘somebody’ when simply beingthat self (Feuerstein, 1982: 44–5; Feuerstein, 1984; Engel and Munger,1996: esp. 48; Bilsky, 1997: 148–9; Deng, 2002:196). This ensures thechild’s psychological survival.

A children’s rights regime should ideally be responsive to thecomplementing needs ‘to be’ and the need ‘to become’. The grantingof a right to autonomy, responding to the child’s need ‘to become’ andovercoming adult paternalism, is often perceived as the most advancedand most problematic stage in the evolution of child law (eg Franklin,1986: 27–38; Van Bueren, 1995: 15). A child who has not beenempowered to develop a unique personal identity may see themselvessimply in terms of their biological needs. Such a child may becomeindifferent to their human rights or misuse them in a reductionist way tosatisfy only momentary desires and impulses (Feuerstein, 1982: 44–5)totally divorced from their noble purposes as envisioned and describedin human rights theory and in case law (eg Cohn, 1991: 19–21; Eekelaar,1994: 51).

Through an evolutionary process of choice between different identifi-cations and values, the child constantly creates and recreates their ownidentity until, hopefully, it crystallizes in adulthood (Van Praagh, 1997:366; Van Praagh and Wilson, 1997: 282; Van Praagh, 1999b: 1348).Classical portrayals of such evolutionary processes of changing identifi-cations are found in the lives of Nelson Mandela and Mahatma Gandhi(Erikson, 1970; Mandela, 1994; Gandhi, 2001). Both individualsreached the stage of courageous commitment to a cultural identitydespised and belittled by mainstream society only through lengthyprocesses of personal growth in their personal alliances and identifi-cations. Both rejected sectarian conceptions of their identity oftenimposed or suggested by social and legal norms. Both allowed them-selves to be themselves despite pressures to conform and to adopt aconventional identity.



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B. Does Legal Recognition of an Individualized Identity Imply a TraditionalLiberal Individualist Ethos?A politics of equal dignity leads to the recognition of the individual’seligibility to a uniform set of rights and immunities. This articleproposes that a politics of difference or identity is needed which wouldcall for the recognition of a human being’s unique individualizedidentity, and which sees the suppression of individual distinctness by adominant or majority identity as the cardinal sin against authenticity, touse Taylor’s (1994: 38) words. In her seminal essay, Carol Gilligan(1982) can be understood as developing this charge in relation tosilencing a distinct, caring voice, which has been derogatorily con-structed as a feminine voice by mainstream academic and populardiscourse. I argue, using Taylor’s wording again, that Gilligan can beunderstood as showing how mainstream discourse presenting anatomistic image of the ideal human being, ‘sins’ against both boys andgirls. Such a model of humanness, often underlying public and legaldiscourse, denies or ignores a central psychological insight: humanbeings are naturally interdependent rather than independent (Gilli-gan, 1982: 2, 4, 74; Cohn, 1991: 19, 21; Freeman, 1997: 73;). Minow (eg1986: esp. 15, 17–18, 24) utilizes this insight in articulating a theory ofchildren’s rights, departing from a traditional ethos of liberal individu-alism in which she emphasizes the centrality of the child’s right to theprotection of their relationships with significant others founded on anethos of interdependence. Universal protection of relationships withsignificant others is in fact protection of the distinctness and theuniqueness in the individual. In this context, the universal and theparticular converge.

Protecting the child’s definition of their identity, ie protecting achild-constructed identity, may be construed as derivative of a commit-ment to their human dignity (Taylor, 1994; Raz, 1998: 200) despite thefact that human dignity politics has not yet been utilized for thispurpose: As Taylor (1994: 39) explains this is an instance of a shift‘where a new understanding of the human social condition imparts aradically new meaning to an old principle’. To conclude, legalrecognition of an individualized identity does not imply endorsement ofa traditional liberal individualist ethos, as one might initially assume. Itis founded on an alternative ethos of interdependence.2

C. Is Public Recognition of the Child’s Individualized Identity Necessary in theChildren’s Rights Era?Society often tends to see the child as property of the state or parents, tobe moulded in another’s image (eg Slaughter, 2000). Our recognitionof the child as an individual, whose authentic identity is worthy of




respect, is meant to reaffirm our commitment to their unique human-ness and counteracts such a tendency. One may doubt whether suchcommitment needs reaffirmation in an era in which – from theperspective of international law – children are seen as eligible forhuman rights. However, it is suggested here that law is only graduallymoving away from serving those in positions of political and economicpower as opposed to others, such as children and ethnic minorities, touniversally safeguarding humane treatment and human rights for all(Nandy, 1990: 32–3; Minow, 1990a: 7–10, 297). Historically, one canobserve a sad human propensity to allow exclusion, stigmatization andeven victimization of the other and then to deny, rationalize, repress ordisassociate the painful experiences of the other (Nandy, 1990: 32–3;Minow, 1990a: 4, 5–7; Minow, 1990b: 1673–4, 1684; Herman, 1992:1–4).Society continues to withhold eligibility for rights and protection forself-actualization from those it sees as deviant, morally impaired orsimply less than fully human. Communities, families and adultsmeaningful to the child may be seen in this way and therefore the child’sties to them are liable to be disregarded. Furthermore, though childrenare seen by international law as bearers of rights, in practice, they arevery vulnerable and their participation in the determination of theirfutures through rights discourse is typically partial and unrelated totheir actual competencies (Minow, 1990a: 285, 303–4). Tendencies tosee the child as not fully human and as property of the state or parents tobe moulded in another’s image may be subtle, implicit, and evenpreconscious. Oppression, stigmatization, and social exclusion areseldom purposeful acts (Minow, 1990a: 62–5). Thus, children affiliatedto minorities are in special jeopardy of social exclusion and silencing.

Admittedly, our moral commitment towards the child has grownsince the Second World War through the assimilation of human rightsnorms into mainstream democratic culture (Alston, 1994; Van Bueren,1995: 1–25); this has also served to improve the general level oftolerance to difference guaranteed by law. However, tolerance asunderstood in liberal theory does not necessarily entail a commitmentto viewing different cultures, which children perceive as their own, asfundamentally equal in worth to mainstream culture: Not all that istolerable is seen as of equal worth to ours (Raz, 1998: 204–5). Such acommitment, which may be seen as a commitment to multiculturalism(Raz, 1998) encourages us to see children as of equal worth despite theirdifferent cultural identities and because of their common humanity. Itnecessitates strengthening our capacity to identify and combat biasesagainst the other embedded in our upbringing and in professionaltraining (Minow, 1990b; Schon, 1991) and to publicly expose andovercome them. It is contended here that one such potential bias is thebias against culture as a context of personal meaning to the child.



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A traditional ethos of liberal individualism commits us to avoidsilencing minority opinion simply because it may be detrimental to thepublic good. In the same vein, when we protect a child’s ties with boththeir social family and their community in as much as they relate tothem with a sense of belonging, we may have to compromise theprotection of conformity to values that mainstream or minoritycommunities see as worthy. This is because the families and communi-ties of such children may not conform to socially accepted values.Failing to respect difference in this arena may be seen as effectivelytreating children as objects and as inconsistent with regarding them asrights holders (see by inference Eekelaar, 1994: 51). For example, achild’s family may promote middle class ‘bourgeois’ values in a socialistor Marxist society; it may promote pacifism or universalism in a patrioticor militaristic society. Similarly, it may advocate moral superiority ofreligious law or community law over state law.

It is suggested that, if our aim is to ensure that individual children arenot, in effect, silenced, we must positively protect those elements thatcontribute to the moulding of an authentic self. It is not enough for lawto ensure that a child is able to express preferences freely and that theyare taken into account as Article 12 mandates (Eekelaar, 1994: 60, note10). Law must positively ensure that the child’s wishes and feelings aresought. Only if the law encourages the child’s participation in definingwho they are, can the child develop into an adult capable of expressingthemselves authentically. A commitment by the state to an ideal ofauthenticity would introduce a structured element of caution into stateintervention in the field of child law. The benefits of such interventioncan be more lucidly balanced with its drawbacks made apparentthrough recognition of an individualized identity.

It is argued here that child law should challenge both mainstream andminority cultures to transform themselves by shouldering a commit-ment to the ideal of authenticity in relation to child rearing. This doesnot envision an abrupt, violent process of transformation, but rather anevolutionary one. Thus, for example the connotation of belonging maygradually change: As stated earlier, children are often perceived asbelonging to their parents. Nevertheless, it is not suggested that weabandon the term ‘belonging’. Rather, one can hope for the transform-ation of both the legal and common usage of the word belonging. Law’sfocus on protecting the child’s sense of belonging may gradually modifysocial norms towards a greater commitment to the development of anauthentic self.

To summarize: it is argued here that, despite wide de jure recognitionof the child’s eligibility to human rights, the legal recognition of anindividualized identity is necessary to reaffirm society’s commitment tothe child as a human being in their own right.




D. How Can Law Protect Not Only the Child’s Right ‘To Become’ but alsoTheir Right ‘To Be’?I have introduced the child’s needs ‘to be’ and ‘to become’. Thequestion remains how both can be practically protected. Self-definitioncan never take place in a vacuum. A child knows who they are only withina specific familial and community context (Wilson, 1997:281), howeverdull at times. Besides being cared for, a child needs a familial andcommunal environment, which they feel is theirs and which affordsthem a clear understanding of who they are and helps to give meaningto their life (Hassall, 1994). The child’s family and community are theirstarting points in life. Ideally, these are their family of origin andcommunity of origin. From within a family and a community a childnaturally begins to create meaningful ties and develop an identity thatevolves over time. Their experiences are gradually applied to new andwidening fields beyond their family and community of origin as theymature biologically and emotionally.

The legal definition of family, however well informed by socialscience literature, is ultimately a cultural construction. Nevertheless,legal rhetoric sometimes erroneously gives us the impression that such alegal definition captures some eternal truths (Minow, 1987: 959–60).Thus, neither ‘blood ties’ nor ‘legal ties’ of parenthood necessarilysignify psychological ties with a child, and in order to discover who fillsthe role of mother or father for the child, it is essential that recourse bemade to the child’s subjective perceptions. In practical terms, protect-ing the child’s right ‘to be’ primarily means ensuring that they will notbe forced to disown their authentic familial and communal identity, tothe detriment of their sense of self and of their human dignity in orderto gain recognition of their normalcy by mainstream society (Hassall,1994: 2–3; Bilsky, 1997: 144–5).

An example of the need for such protection arises in cases ofadoption. ‘Closed’ adoption, breaking all ties with biological kin, wasregarded in the not too distant past as the ideal way to guarantee secureand uninterrupted parenting and family life. Nowadays, the child’s lossof earlier relationships along with all traces of their pre-adoptionidentity is widely recognized as potentially damaging to some childrenand a movement to greater openness in adoption is drawing growingsupport (eg Eekelaar, 1994: 48; Hoelgaard, 1998: 232).

A helpful illustration of the unmet need ‘to be’ comes from recentlyconducted research into the long-term experiences of adopted adults(Howe and Feast, 2000). The research shows that having a name ormaintaining stable ties with one’s psychological parents, guaranteedunder the UNCRC, is not enough. Adopted adults who were not seekingsubstitute psychological parents still wanted to meet their birth parents(Feast, 2000). Many reported that in this way they satisfied importantconcerns about their personal identity and filled a void that they felt



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(Feast, 2000: 387). It is suggested that such searches express the adults’unmet need ‘to be’ in childhood and adolescence.

Feeling protected in being who they are, a child can then allowthemselves to ‘recreate’ themselves in fantasy and in real life: to dreamtheir own dreams, wish their own wishes and even implement their ownplans, however small-scale they may be, at first. Through interdepen-dent relationships with their environment they grow to be increasinglyautonomous yet, as explained above, never fully independent (Gilligan,1982: 74; Minow, 1990a: 301–3; Freeman, 1997: 73).

The strength and significance of children’s ties to a family andcommunity they define as theirs can vary. Some children are alienatedfrom both their extended and nuclear families. These children oftendevelop unique relationships, which may seem peculiar to theuntrained eye. These may be ties to carers, teachers or therapists. Theseties give us the opportunity to question the validity of rigid conventionalboundaries defining who is considered as family and what is consideredprofessional behaviour. They prod us to challenge the above-men-tioned assumption that the legal definition of family captures someeternal truths. It is only possible to understand these relationships inlight of the problematics of the children’s upbringing and develop-ment. Atypical responses to abnormal circumstances are often the wisestand most creative. Thus, the law should respond cautiously to theserelationships and avoid attempts to rigidly dictate that only precon-ceived relationships serve the child’s best interests.

The definition of the right to identity should enable the decision-maker to understand that the little the child sees as their identity,should, in principle, be protected. This understanding of the child’scircumstances will enable the decision to ensure that not only does thechild maintain existing ties, but also that they can develop new onesarising from their personal world. The experience gained throughapproximately a century of state intervention in the name of the WelfarePrinciple teaches a lesson of caution. Fantasies of saving children mayturn out to be painful for the children involved if they are not heard andunderstood as human beings possessing a unique identity. Ties toimperfect blameworthy carers were too often neglected (Kufeldt, 1993:9–10; Hassall, 1994: 9–10; Van Praagh, 1999a: 156; Van Praagh, 1999b:1348). The imposition of well-intentioned adult-minded plans broughtabout the result that children sometimes grow up to become alienatedadults incapable of relationships of trust and care (eg Kufeldt, 1993).

If professionals and jurists listen attentively to children and under-stand what they consider meaningful in their personal world, childrenmay succeed in challenging their exclusion and may thus grow up totrust future representatives of normative society and to identify with itsnorms (Minow, 1990a: 297–9). Respecting the child’s sense of belong-ing may promote identification with society (Raz, 1998: 203–4).




Clearly, though the overall outcome of this approach would begreater legal protection to the child’s ties to their family and communityof origin, in certain cases law may protect significant ties a child hasdeveloped to a family and community which they were not born into,thus overriding the interests of biological parents and minoritycommunities.

A classical example of such cases would be a situation in which fosterparents who took into their home a neglected child through childprotection proceedings are allowed to adopt that child despite rehabili-tation of the biological parents. These biological parents may have had ahistory of drug abuse, criminality and homelessness. Their rehabili-tation in such a case is undoubtedly morally admirable. Nevertheless,the parents’ objections to the adoption may be outweighed by a child’sclear cut wishes and feelings if the child is accorded a right to anindividualized identity and law becomes responsive to their sense ofbelonging.

The new meaning of the right to identity proposed here offers thechild state intervention that is not systematically available at present. Itseeks to ensure that, by protecting ties that they hold valuable, childrensee themselves as neither the property of their parents nor of any otherperson or organ, such as a state welfare agency.

However, the legal system lacks the tools to fully safeguard the child’ssense of belonging in each and every case. Law cannot accommodate allhuman sensitivities and is inevitably based on no more that anapproximation of what the child experiences (eg Eekelaar, 1994: 46–7).

This notwithstanding, the proposed definition of a child’s right toidentity offers reinforcement for the safeguards protecting the child’shuman dignity. It rejects the notion of a ‘normal’ identity, which it doesnot replace with the endorsement of ethnocentrism, connoting theposition that only black or white or brown is beautiful, a positionregrettably associated with identity politics (Minow, 1996). Rejectingethnocentrism while respecting the relevance of ethnicity in theconstruction and reconstruction of an individualized identity mayminimize the exploitation of identity politics to promote communityinterests at the individual’s expense (Alston and Gilmour-Walsh, 1996:39; Deng, 2002:188–9). Indeed, for every ‘we’ there is ‘them’. We arehabituated to boundaries between friends and strangers and withoutthese and other boundaries it is questionable whether we would have anidentity (Sacks, 2002: 46). But the boundaries do not have to be static.We may, as individuals and as a society, see these boundaries as aninvitation to continually expand our awareness of inequity to the otherand to overcome a sense of threat when encountering difference.Identity and a sense of belonging do not have to exclude any specificunchangeable other from eligibility to rights (Nandy, 1990: 32, Sacks,



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2002: 46–66). If we see otherness as an invitation to care for the otherand thus respect their human rights, for example through theuniversally recognized Golden Rule (eg An-Na’im, 1994: 68; Cohn,1991: 42), we become less alienated from them (Erikson, 1963). Identity– ‘mine’ and ‘his’, ‘ours’ and ‘theirs’ – can be dynamic and can becomemore inclusive. Ethnic distinctions may thus lose their significance asrigid personal boundaries that define identity (eg Eekelaar, 2004).

The child’s right to identity, informed by an understanding ofauthenticity, offers to exchange the imagery of universal uniformitywith an imagery of difference and uniqueness in the way children relateto their personal worlds (Minow, 1996; Van Praagh, 1999a: 203). A rightto a cultural identity, relying on the child’s definition of who they are,assumes the dialectic of change described above (Cooper et al, 1995:136–9; Van Praagh, 1997: 366; Van Praagh, 1999b: 1348). What the childdefines presently as their identity may change in the future, as itcontinues to evolve. The state’s commitment to upholding the child’shuman dignity, a commitment to their identity as a person developingtowards autonomous adulthood, should ‘accompany’ the child in theirpersonal journey. A possible derivative of the evolution in the child’sidentity is a change in commitment to different cultures includingminority cultures.

To conclude, under ideal conditions, a child’s nuclear and extendedfamily, their culture, language and nationality are their ‘birth right’(Hassall, 1994), which they enjoy without any intervention from the law.Thus their need ‘to be’ more than their need ‘to become’ is naturallyprotected. Family law should aspire to draw children’s lives closer to theideal, while recognizing its inherent incapacity, ever fully to achieve thisaim. Having said that, the legal protection of the right to identity asoutlined here, does have the capacity to safeguard a critical factorrelating to the child’s well being, namely personal ties that aresignificant to them.

E. Culture as a Context of Personal Meaning: Beyond Cultural SensitivityWhich culture should a child be allowed to enjoy (for exampleaccording to Article 30 of the UNCRC)? which is their culture, say in thecase of a child with multiple minority affiliations; biological parentsfrom one minority, foster-parents with whom he/she lived from age twoto six or adoptive parents? Is it the biological family’s minority culture,ie, the culture into which the child was born, or is it the minority cultureof the foster family, which raised him/her from ages two to eight?Perhaps, it is the minority culture of the adoptive family from whichhe/she is separated when he/she leaves for boarding school? Perhapsthe peer culture at the boarding school?




The conception suggested here is that from a child-centred perspec-tive, the culture that the child should be allowed to enjoy, whethermainstream or minority, is not an abstract derivative of the decision-maker’s theoretical knowledge. From the perspective of the individualchild, it is irrelevant how the tenets and lifestyle of Orthodox Judaism orShiite Islam are described in any textbook. The child’s lived experiencemay be very different from those descriptions. The child’s culture asuniquely experienced by the individual child is defined here as a set ofrelated meanings by which the child interprets the reality of their lifeand its unique circumstances (eg Kline, 1992). This uniqueness is auniversal human condition: that as he/she grows, each child develops aunique cultural identity which brings into focus the commonality ofchildren’s experience of identity formation rather than the ‘otherness’of the child’s unique excluded culture or experience (Minow, 1999:24).

Although it is important to understand the different stages ofchildhood development and children’s psychological needs derivativeof them, such understanding is, in itself, not enough to enable society torespond to children’s needs. It may even serve to disempower the child(eg Eekelaar, 1994). Such understanding reflects only an approxi-mation of the child’s experience. Already from the first months of theirlives, children have both the capacity and interest in giving meaning toevents, although admittedly they are often immature decision-makers.We are therefore called upon to explore the relationship between themeaning the child gives to events in their life which influence theirpreferences and the legal decisions pertaining to those preferences. It isnot suggested that the right to identity should guarantee the child apower of veto in decisions pertaining to them. However, ignoring themeanings the child gives to their personal world by imposing differentmeanings regarding what is good and valuable for the child, and by notoffering protection for culture as a construct of the child, can bedetrimental to the child’s quality of life. Not only can this reduce theefficacy of our efforts on the child’s behalf, but it can also cause them toexperience life generally as duller and society as alienating (see alsoEekelaar, 1994: 54).

The present proposal has not been advocated in the traditionalmanner by recourse to a commitment to cultural sensitivity. Further-more, in light of the above discussion it is not difficult for us to acceptthe assertion that in conceptualizing culture as unchanging andtimeless, one may in the name of cultural sensitivity re-incarcerate anindividual (child) in ‘their’ culture (Lavie and Swedenburg, 1996: 3;Koptiuch, 1996, 215–33). The present approach calls for an empathicunderstanding of the individual child’s experience, an understandingthat is difficult to achieve within a legal setting, though not beyond thecapacities of legal professionals.3



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3. INTERNATIONAL LAW

A. Specific References to Identity in the UN Convention on the Rights of theChildIn Articles 7, 8 and 9, the UNCRC guarantees respectively the child’srights to a name, to citizenship, to know their parents and not to beseparated from them. Article 8 leaves the impression that identity is anopen-ended concept: the attributes of identity, viz., nationality, nameand family relations, are mentioned illustratively (implied by the word‘including’) (Hodgson, 1993: 265). The next article in which we findexplicit referral to the child’s identity is Article 29. This article states theaims of children’s education, ie, that it should encourage the child torespect their own cultural identity and that of others from differentcultures. Article 30 guarantees the right of the minority and indigenouschild ‘to enjoy his or her own culture’. Nothing in the UNCRC definesculture or what makes one a minority or indigenous child. No article inthe UNCRC or the different sets of guidelines deriving from theUNCRC explicitly guarantees the child a right to preserve what they seeas their cultural identity or to preserve ties that are meaningful to themas such, to respect their individualized identity or to ensure specificallytheir involvement in defining their identity.

Questions such as these arise. Do only minority children need law’sprotection? What of undemocratic regimes in which most of thepolitical and economic power is in the hands of an elite belonging to anethnic minority? Is the child born to a Jewish father and a Christianmother and descended from seven generations of Londoners to beconsidered a minority child whose right to enjoy their culture should beprotected in England? Which culture is that? Their father’s? Theirmother’s? Is a child born to a Jewish Mother and a Moslem Arab fatherin Israel to be considered a minority child in Israel, where Moslems are aminority? Both Judaism and Islam consider the child as ‘theirs’ andexpect alliance from the child; the child is both Moslem and Jewishaccording to traditional religious laws but may have grown up feeling nosense of belonging to either of the traditional cultures. There is noexplicit answer to such questions in the text of the UNCRC.

B. The European Convention on Human Rights and Fundamental FreedomsThe ECPHRFF contributes little to the definition of identity, beyondadopting a proactive approach to the duty of the state to protect familylife (Bainham, 2000: 483–4). It does not explicitly mention the child’sright to identity. There is an implied reference to safeguarding thechild’s right to identity in Article 8, which positively obliges ratifyingstates to uphold the individual’s right to respect for family life. But, asBainham (2000: 483–4) maintains, it is unclear what the child’s right tofamily life implies. The European Court of Human Rights ruled that the




interest of knowing one’s origins is protected by Article 8 (Frowein,2002: 130–14). However, much remains unclear. If knowledge of one’sorigins destabilizes the child’s family life, which of the child’s intereststakes precedence and must be protected? How is the interest to bebalanced with other interests protected by rights such as the right tostate intervention on the child’s behalf or the right to parentalguidance, both of which may safeguard the child’s emotional wellbeing?To what extent will the interest of knowing one’s parents be protected?No answer is given in either the wording of the ECPHRFF or in theinterpretation of the UNCRC offered by the jurisprudence of theEuropean Court. To conclude, explicit referrals to identity in these keyinternational legal documents do not provide a legal framework whichmay protect a child-constructed identity.

The next section examines the relationship between Articles 5, 12and 13 of the UNCRC and suggests how the implicit references toidentity-related rights that they contain can help us to develop aconceptual framework beyond the explicit references to identity in theUNCRC .

C. The UN Convention: The Overall PictureAs noted earlier, the provisions of the UNCRC relating specifically tothe child’s identity do not explicitly protect the child’s individualizedidentity. One cannot however understand the UNCRC’s position fullyby relating solely to these provisions. It is suggested that the UNCRC as awhole shows that conceptually, it supports the meaning of the right toidentity proposed here. The preamble states:

. . . (the parties to the convention are) convinced that the family, as thefundamental group of society and the natural environment for the growth andwell-being of all its members and particularly children, should be afforded thenecessary protection and assistance so that it can fully assume its responsibil-ities within the community.

It should be noted that the preamble does not stop with a commitmentto respecting family life, but goes further: it adopts a clearly proactiveapproach in advocating a positive duty by the state to support family life.The family the preamble envisages is clearly a social family, whichnurtures the child’s psychological wellbeing. It may well not be thebiological family, but rather a foster family or an adoptive family. Thepreamble also ascribes positive value to cultural plurality, stating thatmember states have accepted the obligations in the UNCRC to take ‘dueaccount of the importance of the traditions and cultural values of eachpeople for the protection and harmonious development of the child’.Article 18. 2, for its part, enjoins the state to protect and support familylife:



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For the purpose of guaranteeing and promoting the rights set forth in thepresent convention, State parties shall render appropriate assistance to parentsand legal guardians in the performance of their child-rearing responsibilitiesand shall ensure the development of institutions, facilities and for the care ofchildren.

Article 20, like the preamble, can be seen as seeking to protect thechild’s ties to a personal world. However, there is no mention of identityin the article:

When considering solutions (for children temporarily or permanentlydeprived of their family environment, or in whose best interests cannot beallowed to remain in that environment) due regard shall be paid to thedesirability of continuity in a child’s upbringing and to the child’s ethnic,Religious, cultural and linguistic background.

Article 5 of the UNCRC, while also not mentioning the word identity,offers an important key to understanding its intended de factoprotection of the child’s identity. It reads as follows:

State parties shall respect the responsibilities, and duties of parents or, whereapplicable, the members of the extended family or community as provided forby local custom, legal guardians or other persons legally responsible for thechild, to provide, in a manner consistent with the evolving capacities of thechild, appropriate direction and guidance in the exercise by the child of therights recognised in the present convention.

This article clearly frames a broad general principle, and also has a keyrole to play in the interpretation of the provisions of the convention.Importantly, it creates a new basis for the relationship between thechild, the family and state that supports the psychological rationale forthe definition of the right to identity proposed here, namely that thestate’s primary responsibility towards the child is to respect the role ofthe nuclear and extended family and of the community in the child’slife, rather than to intervene in order to protect the child from them.

A tension exists between Article 5 and Articles 12 and 13, which grantthe child a right to be heard, a right to participate in decisions relatingto them and a right to free expression — rights that can overrideparents’ wishes. It is not difficult to contemplate situations in whichparents entrusted to guide the child in the exercise of their rights wouldbe tempted to obstruct the child from exercising their rights because ofthe parents’ selfish interests (Freeman, 1997: 68; Fortin, 1998: 42).However, it is suggested that Article 5, through its moderation,generality and relative ambiguity, can, when understood in combi-nation with Articles 12 and 13, contribute to an evolutionary process,which will advance the child’s legal status. It is suggested that theUNCRC thus encourages adults with whom the child maintains




meaningful ties to find culturally appropriate ways to respect the rightsof the child including their right to participation in decisions relating tothem.

As An-Na’im explains, delegates from the Southern hemisphere whotook part in the drafting, adoption and implementation of humanrights norms did not operate with concepts and mechanisms from theirown political, cultural and ideological history and thus the universalhuman rights consensus reached is elusive (An-Na’im, 1994: 65).

It is suggested that, by trusting families and communities to respectchildren’s rights and by not derogating from their cultures andtraditions, the UNCRC (primarily through Article 5) offers families andcommunities a challenge which cannot easily be dismissed as patroniz-ing, alien, imperialistic or Eurocentric, despite the fact that theterminology of human rights originated in Europe and was mainlydeveloped by the West.5

It is contended here that the tension between Articles 5, 12 and 13,and the legal complexity it produces, is to be welcomed since it reflectsthe real-life complexity of responding to the child’s conflicting needs‘to be’ and ‘to become’. Essentially, through this tension the UNCRCovercomes the temptation to entertain a crude atomistic vision of thechild’s interests. Our discussion illustrates that by endeavouring toreach a balance between protection rights and participation rights, theUNCRC is not a children’s liberation manifesto. Clearly, it does notpurport to free children subjugated by adults. I suggest that it does notabandon children to some of their rights. Children who exerciseparticipation rights and civil rights and also enjoy protected adultguidance have a greater chance to develop into more rounded adults,who can not only exercise autonomy, but also function within relation-ships of commitment and responsibility (Freeman, 1997: 37–40; Smith,1997:103).

This scenario, in which the child’s evolving capacities are recognizedwithin the guidance and protection of adults, may be threatenedbecause of the inadequate protection offered to the child’s right toidentity. Adults are often tempted to dismiss what a child says. Forexample, they may describe their input as immature and an expressionof ignorance, ‘programming’ or ‘brainwashing’ (Ronen, 1998). Thus,for example, through diagnosis of the controversial ‘Parental Alien-ation Syndrome’, some courts have been persuaded to order a child whois functioning well both emotionally and intellectually to live with aparent whom he/she hates, or in a state institution. This may happeneven if the hated parent had been abusive towards the child and thereare objective reasons for the child’s aversion to him, as long asbrainwashing against the hated parent by the other parent is proven (egBala, 1999: 194–5; Bruch, 2001). Thus, there is a real risk that Article 12will be emptied of meaning through paternalistic notions of protecting



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children from influence and coercion (Eekelaar, 1994: 56–7; Ronen,1998: 257–9;).

If a child has legal recourse to a claim for consideration of their wishesor feelings because, beyond allowing them self-determination asproposed by Eekelaar (1994: esp. 52), these wishes or feelings indicateties that are meaningful to them, their participation in decisionsrelating to them may become more visible and influential. In suchcircumstances, recognizing a child’s right to be heard and to participatein decisions pertaining to them and to express themselves freely, mayenhance the weight given to the child’s definition of family, communityand culture and may allow meaningful implementation of Article 12 in amanner that overcomes the prima facie tension with Article 5. If achild-constructed right to identity is recognized, the tension betweenArticles 5, 12, 13 may serve the development of the child’s identity.

4. IDENTITY IN TWO CASES: THE STORIES AS TOLD BY THE COURTS

Two English Court of Appeal cases are now examined, introduced at theoutset of this article, attempting to implement the proposed redefini-tion of the right to identity.

A. Re M (Section 94 Appeals)6

This case concerned a seven-year-old girl, whom the court called S. Thegirl’s parentage was of mixed race, her mother being white and herfather black. The parents never married and upon the breakdown oftheir relationship the father had unsupervised contact with the child,which was stopped by the mother from time to time. Proceedings beforethe Family Proceeding Courts ended in the magistrates granting themother’s application to terminate the contact between the child and thefather. The father appealed under section 94 of the Children Act 1989and Ewbank J. dismissed the appeal. The father then appealed againstthe decision to the Court of Appeal. The decision in the Appeal waswritten by Butler-Sloss LJ, Kennedy LJ concurring.

Butler-Sloss LJ explained that the appeal was remitted for rehearingbecause the judge did not advert at all in his judgement to the ‘major’issue of race and to the failure of the magistrates to deal with it.7 TheJudge linked the failure to deal with the question of race to otherfactors:8

The mother and her new husband are white and the father is black. The childwhose photograph I have seen is clearly of mixed race. The court welfare officerwas troubled by the ending of the contact when she felt that the child wouldwonder why she did not see her father, especially since she is a mixed race child.She had said she was getting a new white daddy. The court welfare officer feltthe child was confused about her racial identity, and on my reading of the




reports and the oral evidence there was at least a hint of the mother andgrandmother shutting their eyes to this important issue. The welfare officerasked for an adjournment for six months to enable contact at a contact centerto continue and be monitored. The magistrates made findings adverse to thefather in that he showed little interest in the child’s schooling, had little insightin the child’s emotional or developmental needs and did not meet his financialobligations. Although some of these findings were against the views of the courtwelfare officer, the magistrates were entitled to make their own findings...Thechild had said she did not want to see her father but the court welfare officer didnot believe that such was the child’s underlying view and gave reasons. Themagistrates ought in my view at least to have indicated their disagreement withthe court welfare officer on the issues of the child’s behaviour and her wishes,which they clearly thought significant. The magistrates decided that thecontact had not added anything positive to S’s upbringing and the father hadnot shown sufficient commitment and dedication to deal with the complexsituation, in particular the degree of hostility by the mother and grandmothertowards him.

The reasoning of the decision given by Butler-Sloss LJ offers somesubstantive guidance to the judge re-hearing the case:9

Whether in the future this father will have any contact at all, frequent contact,infrequent contact or indirect contact, will be a matter for the judge rehearingthe application. He or she will have to consider the significance of race and thehostility of the maternal family towards the father and place those and all theother factors for and against the father having contact to the child in thebalance in coming to the decision on contact. But the child’s racial origins andthe concerns of the court welfare officer have to be carefully considered and itis for those reasons that I felt this appeal has to be allowed.

Below, I shall critically examine this reasoning leading to an outcomeI consider as highly questionable from a children’s rights perspective.

B. Re M (Child’s Upbringing)10

In this case the care and adoption of a ten-year-old black African boy ofZulu parentage was contested between his biological parents and awhite foster mother. The boy, called P by the court, was born in SouthAfrica to a mother who worked as a nanny and cook/housekeeper in thehouse of the foster mother who had three daughters. The mother wasnot married to the father who also worked for the foster mother for awhile. From the age of 18 months the boy lived with the foster mother inher home in a way that would enable him to remain there with hismother instead of being sent back to his mother’s village according toapartheid regulations. The boy and the white employer became closelyattached to each other. The father had only sporadic contacts with thechild and his mother. It appears that at some stage during P’s early years



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the father had a relationship with another woman who bore him a child.In 1992, when P was six, the foster mother decided to leave South Africafor London because she regarded the political situation as unstable andwas worried about possible violence. When the foster mother decided toleave, P’s parents agreed that he move with her. It is noteworthy that,according to Thorpe J, who heard the case at first instance:11

the appellant’s first preference would have been to take both the mother and Pwith her to London, but the mother made it plain that she would not leave herhomeland. . .the easiest course. . .in practical terms would have been to have left(P) behind with (the mother). But. . .she had by then a strong. . .attachment tothe child. Those attachments led her to offer to continue to take care of (P) andto provide for him as though he were her own child. . .The only issue betweenthe parties is as to the duration of the arrangement. (The appellant) asserts thatit was an indefinite arrangement that would endure until the completion of(P’s) education. (The father and the mother) assert that the arrangement wasfor five years precisely. It seems to me that reality lies somewhere between thosepoles.

On arrival in the UK in March 1992 the foster mother told theimmigration authorities that she wished to adopt P and P was given leaveto remain in the UK for three months. By May 1992 the foster motherhad already reached a firm decision, unknown to the parents, that shewished to adopt P. In October 1992 she wrote to the mother thefollowing:12

To keep (P) in this country I have to adopt him. If there is another way to do it, Iwill. I will never take him away from you, so that you won’t be able to see himagain. You are his mother.

Soon after that, the parents were visited by a social worker at the fostermother’s request in order to establish their wishes as to P’s adoption.The parents initially objected to the adoption and the mother spoke ofnot hearing from the child since July. A few days later the social workerwrote again to say that the mother’s position appeared to have changed.She was proposing that if P stayed in England he should visit hisbiological parents each year for a month. Later, both parents expressedthe opinion that if the foster mother wanted to take the child for ever –breaking the agreement with them – the child should return to them assoon as possible.

Between June and August 1993 the mother wrote ten letters, some ofthem dispatched within days of each other, in which the motherpleaded for the child’s return to South Africa for a visit. In July 1993 thefoster mother wrote a letter telling the mother that she could not send Pto South Africa at that stage. The Judge described the letter as ‘asurprisingly dispassionate response to what were moving appeals’.13 He




concluded that the father was an insubstantial figure in the child’s life,as the only communication between him and the child was oneChristmas card.14 His appraisal of the relationship between the biologi-cal mother and the foster mother, quoted by the Court of Appeal, isparticularly noteworthy:15

The correspondence shows the closeness of the relationship between (themother) and (the appellant’s) family. It further shows the tragic evaporation oftrust and affection, gradual but steady . . . it is significant that the correspon-dence peters from frequent and intense . . .. to non-existent after thecommencement of litigation.

In 1996, four years after the initial separation from his biologicalparents, the court gave its judgement. It could have chosen betweenthree options deriving from the parties’ contentions: adoption (assought by the foster mother), immediate return to South Africa (assought by the parents) and a return to South Africa at the end of theperiod agreed upon, whatever that period might be.

The court in fact decided to adopt a fourth option. It laid down amaster plan for the child’s return to South Africa after a period of twoyears in which the child would be reintroduced to ‘his’ family and ‘his’country, to use the court’s words. In two years’ time the court woulddetermine the dates and the circumstances of the child’s permanentreturn to South Africa. The white foster mother was to pay for the travelexpenses of the parents to England and of the child to South Africa. Shecould not afford most of her undertakings, as she became unemployed.She appealed against the order of the judge on the basis that the reviewshould reopen the issue of the child’s residence and upbringing duringadolescence. The child’s biological parents appealed contending thatthe child’s return should not be further delayed.

An expert psychiatrist appointed by the court explained the danger-ous consequences of forcefully and prematurely removing the childfrom the foster mother and her family:16

To remove him in the middle of turmoil of disagreement would be veryprofoundly damaging, to such an extent that the boy might never recover hispoise and psychological well-being and confidence.

Although it was clear from the expert opinion that the child’s mind wasset very strongly against return, the court allowed the appeal of theparents. Ward LJ, quoting from another case, implied that allowing thechild to remain in the UK would create a great danger of slipping intosocial engineering. The boy was returned to South Africa.17 The child‘was so unhappy’ in South Africa that he was later returned to England,into the foster mother’s care (Fortin, 1998: 357 note10). In this case,too, I shall re-examine judicial reasoning leading to an outcome Iconsider as highly questionable from a children’s rights perspective.



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5. ANALYSIS OF THE TWO CASES

A. Re M (Section 94 Appeals)Although Butler-Sloss LJ says that the magistrates thought that thechild’s wishes were significant and that they disagreed with the courtwelfare officer as to the child’s underlying views, we learn very littleabout how the girl saw her father or how they related to each other. TheCourt of Appeal does not instruct the judge rehearing the case to lookinto questions, which are fundamental to the child’ psychologicalwellbeing. Does she love her father? Does she care about him at all?Does she feel sorry for him? Is she proud of him? Does she ever dream ofliving in her father’s home or of her father looking after her? Withoutanswers to these or similar questions, which relate to the meaning of theparent-child tie, we know very little of this facet of the child’sindividualized identity.

The judges are morally judgemental towards the father, disparaginghis parental capacities, for apparently valid reasons. However, whendeciding on parental contact, the child’s sense of belonging and eventhe concept of psychological parenthood remain unmentioned.Nothing in the UNCRC or the ECPHRFF dictates a different outcome.

Nevertheless, the analysis offered here suggests that it is lesssignificant that the child says she has a ‘white’ ‘daddy’ than that she saysshe has a ‘new’ ‘daddy’ (see also Eekelaar, 2004). Supported both byrecognition of the child’s need ‘to be’ underlying the child’s right toidentity and by psycholegal literature (eg Eekelaar, 1994: 48), the courtshould have asked – sceptically – how a seven-year-old child who hasknown her father from birth can be reconciled with the fact that shesuddenly has a ‘new father’. The Court should have explicitly assumedthat a non-racially mixed child, a child who is not confused about herracial identity, would also be inclined to wonder why her father haddisappeared.

The magistrates’ choice of words is troubling, We learn that theyterminated contact primarily because the father had not addedanything to the child’s upbringing. However, a father is part of thechild’s being. A child may see her father as emotionally belonging to hereven if he does nothing intentional for her and even if one cannot pointto anything specific, which he added to her upbringing. As aninterdependent human being the child’s needs her father and not afather even when he adds nothing visible to her upbringing.

Rosenblatt (1996), who is generally supportive of the Court ofAppeal’s decision, rightly points out that the nurturance of the ‘ethnicchild’ toward sound psychological development could be more prob-lematic than that of the white child, as the latter does not have to face asociety which rejects their ‘ethnic’ parent. It is suggested that we go




beyond Rosenblatt’s championing of the court’s ‘racial and ethnicawareness’ (1996: 641). The court’s reasoning reflects a colour con-scious yet vague and impersonal image of the child’s identity. It issuggested that this image is unsatisfactory from a child-centredperspective.

If the father has no significance in his daughter’s life, if she perceiveshim as not caring about her emotional needs, then being entitled to anindividualized identity, she should not be forced to see him onlybecause of a similarity in skin colour. If this is her perception of him, andshe is forced to see him, it seems doubtful that such meetings wouldbolster her self-esteem concerning her racial identity. If, on the otherhand, the child’s father is significant to her and she wishes to be in touchwith him despite her mother’s hostility towards him, it is not thesimilarity of their skin colour that should be the deciding factor. In thelatter case, the court must strike a difficult balance between the child’sright to participation and self-constructed identity and her right to astable psychologically nurturing family life.

The mother and grandmother are hostile to the father and may beshutting their eyes to the child’s confusion about her racial identity.Their hostility may be only to the father as an individual or it mayamount to racial prejudice. The court could have made this distinctionand suggested that in both cases the child’s wishes and feelings may beharmfully influenced by their attitudes and that they have a right andduty to guide the child in the implementation of her rights, being loyalto her interests in this task.

The court’s judgement misses the opportunity to draw attention tothe fine line between the sphere of imperfect yet legitimate adultguidance and influence and what lies beyond such a sphere andamounts to violation of the child’s rights through programming. It alsodoes not clarify that, whether or not intervention is the least detrimentalalternative from the individual child’s perspective, it can also bededuced from the child’s wishes and feelings.

To summarize, the Court of Appeal addresses the question of race inthe abstract. Butler Sloss LJ does not direct our attention to the child’sindividualized identity, as perceived and constructed by the child, anddoes not see the court as duty bound to protect such an identity. Thus,the court’s decision — I assume, unintentionally – serves ethnocen-trism. The child’s right to be in touch with the person she considers herfather is overshadowed by efforts to ensure that the break of relation-ship with a black father will not adversely influence her feelings aboutbeing dark skinned. The Court’s instructions to the Judge rehearing thecase can be easily justified if one resorts to the common perception ofcultural sensitivity or to the interests of the black community or blackchildren at large. However, from the individual child’s perspective, thepivotal question, which was neglected, was not that of ‘the child’s racial



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origins’ as such, but rather what the child sees as emotionally belongingto him. In practice, the difference between the two may be subtle, yet it isimportant to make the distinction.

B. Re M (Child’s Upbringing)Both Neill LJ and Ward LJ wrote detailed judgements. The concludingpassage written by Neill LJ is revealing. In it he explains why the childmust be returned:18

Anyone who has studied this case cannot fail to have great admiration for theappellant and for the love and affection, which she and her family have given toP since he was a baby. But he has the right to be reunited with his Zulu parentsand with his extended family in South Africa.

The ‘yes, but’ dynamic of the above dicta of Neil LJ is interesting; it issimilar to a passage in an American child abuse case (the DeShaneyCase) discussed by Minow (1990b: 1674–5). The passage starts with anempathic response, deriving from an almost instinctual sense of humaninterconnectedness, and ends with what seems to be an inevitablerational decision, which must overcome the initial empathic response.It is suggested that, because we are conditioned, as jurists, to dichoto-mize reason and emotion, to ignore our common interdependence andto delegitimize empathy as a decision-making tool, the legal conclusion,in opposition to the judges’ empathic response may seem even moreinevitable. But we should carefully explore whether the solution is asinevitable as it seems. It is suggested that the answer is negative.

Neill LJ’s seemingly straightforward implementation of the child’s‘right’ to be reunited with ‘his’ family may be questioned. His decisionmay be seen as an implicit unrecognized determination in a conflict ofrights; between the right to be unified with one’s biological nuclear andextended family and the right to remain with one’s foster mother who isa psychological mother and with her family (Freeman, 1997: 13–14,note 87). It is suggested that by denying paramountcy to the psychologi-cal parenthood, the court may be denying the child the opportunity togrow psychologically towards adulthood through dynamically definingand constructing an authentic identity. Consequently the duty to givedue weight to the child’s wishes under Article 12 may be practicallyemptied of meaning. Jane Fortin accurately identifies the ‘undercur-rent’ of the court’s rationale (with which she apparently agrees) whenshe writes (1998: 357):

In Re M (Child’s Upbringing) the Court of Appeal was effectively asked to redressthe perpetration of racial iinjustice by a white South African woman who hadproduced a situation whereby P, a ten-year-old boy of Zulu parents, hadstronger ties of affection for her and her family than he did for his own parents.The case was a complex one. In particular, there was the slightly unsavourybackground which suggested that the white foster mother had deceived P’s




birth parents over her true intentions when gaining their consent to her takingP with her when she came to England.

One can see no reason to doubt that Neil LJ sincerely attempted to beculturally sensitive. Furthermore, his decision is, strictly speaking, inaccordance with both the UNCRC and the ECPHRFF, as analysedabove. Nevertheless, one may well ask: does the ‘official story’ of a whitewoman perpetrating racial injustice against her black former employeereflect the authentic experience of the individuals involved? Was theresulting situation unilaterally or predominantly ‘produced’ by oneindividual? Does the official storyteller, namely the judge, go beyondtrying to act in a way that is commonly perceived as culturally sensitiveand seek to relate empathetically to the individuals involved? Theanswer suggested here to these questions is negative.

By highlighting and reinterpreting certain facts, I would like to offer acounter story, as lawyers often do in courtrooms (eg Ferguson, 1996:86). In this counter story I attempt to expose and counteract anunintentionally politicized selectivity of compassion. Let me (re)start bypointing out that the child was raised in a Zulu environment only up tothe age of 18 months. Since that age, the foster mother, with thebiological mother’s consent and approval, had brought the child up.This was in order to tackle an apartheid regulation mandating that thechild return to his mother’s village. The foster mother’s family objectedto her close ties with the blacks. She may have had to deceive both herfamily of origin, which was supportive of apartheid regulations andapartheid authorities in order to maintain de facto guardianship of thechild. Deceit may have been a necessary ingredient for survival in thefoster mother’s world. If we find fault with the foster mother’sdeceitfulness, why not also consider her more politically correctdeceitfulness? Could it be that deceitfulness becomes a coping strategytoo easily sought once used by necessity? It was also not contested thatthe foster mother suggested that the boy’s biological motheraccompany her to England and that the mother refused because shewould not leave her homeland. There was no clear agreement as to theduration of the child’s stay in England. Even after the foster motherasked for the biological parents’ consent to adoption, at one stage thebiological mother was prepared to agree that the child ‘live’ in Englandif he would visit her every year for a month. The most remarkable fact tobe emphasized in such a counter story would be the child’s return toEngland with the consent of his biological parents after they gained fullguardianship of him.

The efforts of this counter story to reach an empathic understandingof the individuals involved identifies no villain, but only imperfecthuman beings, not always fully cognisant of their interdependence,trying to act decently and even lovingly in a difficult social reality, andsometimes failing. The foster mother was not implementing a master



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plan to break the ties between the child and the biological parentsthrough her initially secret efforts to adopt the child. It was the mother’schoice to remain in South Africa. However, at some stages, the fostermother’s attachment to the child did not bring out the best in her – asnoted by the court, her dispassionate response to the mother’s painfulletters indicates a blatantly insensitive attitude towards the child’sbiological mother. Nor did the parents have a master plan to first use thefoster mother, a widow with three girls of her own, to raise their childand then turn their backs on the foster mother and betray her trust bydemanding her separation from the child for good when it suited theirpersonal marital plans.

They initially enjoyed the love and generosity the foster motheroffered the child, but it was also her behaviour which manoeuvred theminto a position of opposition. All parties seem to be struggling withdifficult life situations. Human frailties seem to explain better than anyother reason the breakdown of relations primarily between the twowomen who initially cared both about each other and for the child andwere struggling to do their best in difficult circumstances.

What is remarkable in this case is what was created and not what waslater ruined. Subtly, the case exemplifies how clear-cut racist definitionsof otherness are challenged and overcome through care and trustbetween two women attached to the same child. For a while, familial,communal and ethnic boundaries are ignored. Bitterness and distrustbetween the two women could have surfaced only after alienation wasinitially overcome.

It is suggested that, as in Solomon’s dilemma, the court must identifythe solution that holds most compassion for the child. I suggest thatSolomon attempting to identify the psychological mother was aided bythe fact that one of the women was ready to give up the child to save hislife. Through her decision she demonstrated her greater compassionfor the child.20 The English Court was aided by the biological parents,especially the more involved mother, who gave several hints that thechild’s best interests lay with the foster mother. Though her pain atbeing torn away from her son moved her to disagree in the hearing tohis adoption, her compassion for him is mirrored in her ambivalence.After voicing her objection, she is, at one stage, before any litigation,ready to concede to adoption if the child visits her for a month eachyear. If the foster mother had acted in a more caring and trust-inspiringway towards her, the litigation might have been avoided. The childfinally returned to England, not because of a court order, but probablydue to the recognition by the ‘victorious’ biological parents that he wasvery unhappy in South Africa with them and with his community oforigin.

The case illustrates the abyss between respect for the child’s culture asa context of personal meaning and cultural sensitivity as commonly




perceived. Using abstract notions of culture and ancestry and neglect-ing culture as a context of personal meaning, the court ignored thesignificance of the biological parents’ choices. The parents identifiedthe child’s best interests as not growing up in the Zulu village of hismother. They preferred him to grow up in the home of a white Afrikanerwoman and they later preferred offering him a rare opportunity toactualize his – human – potential through an English education, first inSouth Africa and than in England, to educating him in a Zuluenvironment, most probably, with very meagre resources and verylimited educational opportunities. Finally, I would suggest that theparents were forced by the outcome of the proceedings, ignoring theirhints, to take the initiative to break away from their offspring in order torespect the child’s sense of who he is and ties that he would most like tomaintain. At the end of the day, it seems that the child’s painful struggleand the responsiveness of his biological parents to his suffering ensuredprotection of an individualized child-created identity. It is conceivablethat the parents’ implied conception of identity is not inexorably tied toa place. Proponents of ethnocentric identity could have found fault inthe parents’ actions, especially if motivated by such a conception ofidentity.

To conclude, had the court recognized the child’s right to anindividualized identity as proposed here, the child’s wishes and feelingswould have been given due weight in the first place, and would haveallowed the court to protect an authentic child-constructed identityradically different from any clear-cut notion of Zulu or Afrikaneridentity. The court could have utilized the child’s input as to his identityto navigate a course between the child’s wishes and the responsibilitiesof the different adults in his personal world. Such a course would havebeen in accordance with Articles 5 and 12 of the UNCRC. Article 5 issignificantly open-ended in its wording and would have enabledconsideration of the responsibilities of the foster mother, undoubtedlya significant person in the child’s life.

The case is, in my eyes, a classical example of the assertion that ethnicdistinctions do not indicate the personal boundaries one sets betweenoneself and others, nor how society could respond to the child’s sense ofbelonging. It clearly exemplifies the distinction and tension betweencultural sensitivity as commonly perceived and respect for the child’sindividualized identity.

6. CONCLUSION

The right to a self-constructed identity may be seen as deriving from thechild’s fundamental human dignity, though it goes well beyond whathas been traditionally deduced from a legal commitment to the child’shuman dignity. The two cases examined here demonstrate how theproposed concept of identity can radically change the outcome of



YA ’IR RONEN 173

child-centred deliberations. A self-constructed identity is the product ofthe child’s experience rather than an adult imposition or a generalapproximation of children’s experiences, wishes and feelings. Legalrecognition of such an identity leads child law into new ground.

Children may need proactive state intervention in order to maintainrelationships meaningful to them. These needs are not guaranteedunder the UNCRC, which instead now offers an ambiguous concept ofidentity. It mandates that the child be educated to respect their owncultural identity and that of others, but not that this cultural identity beprotected by the law or that the child’s feelings be consequential to thedefinition of their identity.

Proactive state protection may at times imply ensuring survival of adistinct cultural identity through indefinite future generations, mir-roring authentic aspirations of minority children. Traditional liberaltheory cannot justify such measures, and indeed theorists adhering tosuch an ethos, such as Kymlica (1989) and Tamir (1993), did notadvocate proactive state action. The scope and substance of such stateaction, not discussed here, may justify further research.

Every society that is committed to human rights should see its way togranting clear and unequivocal recognition of the child’s right to aself-constructed identity. For this purpose an Optional Protocol to theUNCRC may be drafted. Once the right gains recognition, child lawjurisprudence will have to develop the judicial tools needed to ascertaina child’s authentic identity while overcoming law’s tendency towards theabstraction and objectification of culture and while protecting the childfrom premature autonomy.

Redefining the child’s right to identity has wide implications beyondthose exemplified in the two cases discussed. For example, in aguardianship dispute, when the court rules on a child’s disputedexposure to different religious and cultural traditions, greater weightwould have to be given to the child’s wishes and feelings in order toprotect their sense of belonging. Choosing between the Tender AgeTest, the Primary Caretaker Test and Psychological Parenthood/Emotional Bonding Test (eg Eekelaar, 1994: 46; Sexton, 2002), it wouldbe almost impossible not to give paramountcy to the child’s emotionalbonding. Greater consideration will need to be given to the preferencesof a child’s biological parents regarding the cultural, religious andethnic identity of the couple who adopt their offspring, since suchpreferences may protect the evolving construction of an identity by thechild. Open adoption would be preferred in cases of some olderchildren due to the infringement of closed adoption on the child’s rightto an individualized evolving identity.20

Returning to the question of social engineering raised by Ward LJ inRe M (Child’s Upbringing), I suggest that framing decisions concerningindividual children in line with ethnocentric identity politics and

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purporting to correct group wrongs through court decisions relating toties of individual children is a subtle yet dangerous form of well meaningsocial engineering. Whereas affirmative action always aims to serve theinterests of the individual minority child, here the child pays a price forcorrecting group wrongs. Such decisions while often purporting toexpress cultural sensitivity, may perpetuate the re-creation of insulateddiscrete identities competing with each other within a social arenawhich champions group differences and silences the individual child intheir efforts to chart their own way as a creator of meaning. A staticconception of identity, tying identity to place of birth may serve such atrend (Lavie and Swedenburg, 1996) and may thus jeopardize the tiessome children develop to their places of residence. These may be, forexample, children of asylum seekers, children of foreign workers orchildren abducted by a parent from their place of birth because of abuseunrecognized in the country of origin.

Recognition of the child’s experiences through the right to identityleads to legal responses to child law dilemmas that may be moreauthentically compassionate towards the child. Protection of tiesbetween a marginalized parent, who has strayed from mainstreamnorms of child rearing, and his child may be at odds with publicsentiment typically keen to classify, marginalize and exclude some‘other’ and yet be authentically responsive to the child’s needs. Thus,compassion towards the child may be less easily politicized.

Such legal responses may be less effective in serving the publicinterests of retaliation and deterrence of abusive parents. However, asexemplified through the two cases, it would be wrong to conclude thatrecognition of the child’s right to an individualized identity willnecessarily strengthen the legal status of biological parents. In thecompetition between biological parents and adoptive parents orbetween biological parents and fosterparents, recognition of such aright would clearly undermine the centrality of blood ‘ties’ when thesedo not correspond with ties that are meaningful to the child.

NOTES1 Following the UNCRC, a child is defined here as any person from birth to the age of 18 years.2 For further critiques of an atomistic vision of the child, leading to recognition of the child’s

dependency needs see Minow, 1990: 306; Glendon, 1991: esp. 47–8, 66–75; Brooks,1996; Mutua,2002: 80–1. For a rather pessimistic appraisal of the UNCRC’s potential to promote the rights of thechild as an interdependent human being see Freeman, 1997: 73–4.

3 For detailed discussions of jurists’ ambivalence towards recourse to empathic understanding inlegal analysis see Henderson, 1987; Massaro, 1989; Minow, 1990b; Wexler, 2002.

4 Citing Gaskin v United Kingdom (1989) 160 Eur. Ct. H.R. (ser. A.) p 25.5 For a general child-centered critical discussion of cultural relativism see Freeman, 1997:

129–35,137–40, 147.6 [1995] 1 FLR 546.7 See n 2 at 550.8 Ibid at 550.



YA ’IR RONEN 1759 Ibid at 550.10 [1996] 2 FLR 441.11 See n 3 at 479.12 Ibid at 492.13 Ibid at 480.14 Ibid at. 479.15 Ibid at 479.16 Ibid at 493.17 Ibid at 454.18 See n 3 at 454.19 My interpretation of Solomon’s Dilemma assuming that the child’s guardianship was

determined according to responsiveness to emotional needs and not biology is certainly notbeyond dispute. See eg Woodhouse, 1994: 1526.

20 In an earlier article on the right to identity (published in Hebrew) I examined New Zealand’sChildren, Young Persons and Their Families Act of 1989 and Israeli legislation and case law. Iexamined there the implementation of the right to identity in the contexts outlined in the textfocusing on Israeli case law. See Ronen, Y. (2003) ‘The child’s right to identity as a right to belong’(Hebrew), 26 Tel Aviv University Law Review 3, 935–84.

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